As an estate planning attorney, I am often asked (either by existing clients who are considering moving out of California, or by new clients who are moving here to California) “do I need to update my will if I move to a new state?” Anyone who moves to another state, whether for retirement, a new job or to be closer to family, at a bare minimum needs to review their estate plan to make sure it is valid and effective in their new state, advises the Boca Newspaper in the recent article “I’ve Relocated To Florida…Should I Update My Estate Plan?”
And if you haven’t yet created your estate plan, relocation is the perfect opportunity to get this important task done. Think of it as preparation for your fresh start in your new home.
Because so many retirees do relocate to Florida, there are some general rules that make this easier. For one thing, most wills that are valid in another state are recognized in Florida. There’s a specific law in the Florida statutes that confirms that “other than a holographic or nuncupative will, executed by a nonresident of Florida… is valid as a will in this state if valid under the laws of the state or country where the will was executed.”
In other words, if the estate plan was prepared by an estate planning attorney and is legally valid in the prior state, it will be valid in Florida, and that is the case in most states.
However, just because your will or trust is recognized in your new state, does not mean that it is going to work optimally or that all of your intentions will be able to be satisfied with your existing documents in your new state. That is why you will often need to update your will when you move to a new state, so that you can be sure it makes the process as hassle free as possible for your loved ones after you are gone.
There are distinctions in state laws that may make certain provisions invalid or change their meaning. In one well-known case, a will was missing one sentence—known as a “residual clause,” a catch-all that distributes assets that are otherwise not specified. The maker of the will wanted everything to go to her brother. However, without that one clause, property acquired after the will was created was not included. The court determined that the property that was acquired after the will was created, would go to other relatives, despite the wishes of the decedent.
In addition, different states treat property owned by married couples differently. If you move to California (a community property state) from a common law state, or vice versa, property owned by you and your spouse will be classified differently, which can have an effect on the outcome of your estate plan. That is a very common reason you may need to update your will or trust if you move to a new state.
As you begin the review process in your new state, if you don’t already have a revocable living trust, explore with your estate planning attorney whether your estate plan should include one. A revocable living trust will avoid the assets placed in the trust having to go through probate. If you have real estate, and especially if you have real estate in multiple states, avoiding probate can be extremely valuable, saving your heirs a great deal of money when they later inherit from you.
This is also the time to review your Durable Power of Attorney and Healthcare Directives, as well.
Estate planning gives peace of mind, knowing that the legal side of your life is all taken care of. It avoids stress and unnecessary costs and delays to your family. It should be reviewed and updated at big events in your life, including when you acquire significant new property, have a new child and, of course, relocate.
Reference: Boca Newspaper (May 1, 2019) “I’ve Relocated To Florida…Should I Update My Estate Plan?”